Saturday, 13 February 2016

NS evader jailed 1½ months; judge gives sentencing guidelines

Man gets prison term instead of a fine after prosecution's appeal
By Selina Lum, The Straits Times, 12 Feb 2016

A 25-year-old man who left Singapore at the age of 14 to study in Australia and evaded enlistment for more than six years was yesterday jailed for 1½ months.This was after an appeal by the prosecution against his original sentence of just a $4,500 fine.Justice Chan Seng Onn told Brian Joseph Chow that he would have been jailed for three months if not for his exceptional performance during his national service (NS), which he eventually served when he voluntarily returned to Singapore in May 2013.In sentencing Chow, Justice Chan laid down detailed sentencing guidelines with the help of a graph, ruling that jail time is warranted for those who have a "substantial connection" to Singapore but evade NS by remaining overseas for more than two years. He said such defaulters enjoyed the benefits of citizenship but gained an unfair advantage over their peers.Factors that influence sentencing include the number of years that the culprit evaded NS, whether he surrendered on his own or was arrested, and whether he pleaded guilty instead of claiming trial. The court would also consider the age at which the defaulter started evading NS and apply a discount if he excelled during his service to the country.

But Justice Chan drew a distinction between those with a "substantial connection" to Singapore and those who left the country at a very young age and had very little connection to it. The latter group are typically fined. But the judge declined to give benchmarks for this category, saying this was not the matter currently before the court.In the current case, Chow first left to study in Australia in 2005. He had finished his primary and some of his secondary education here but his parents felt the local education system was not equipped to deal with his attention deficit disorder.

When he turned 16½ in 2007, he had to apply for a valid exit permit to remain outside Singapore but did not do so. In January 2008, he was notified to register for NS. After he provided a letter from his school in Australia, the Defence Ministry offered him a deferment for his foundation course - but not for his university studies. It issued follow-up reporting orders.

In March 2009, Chow e-mailed the ministry, asking to defer NS for his university studies. He was told that he had committed an offence and was advised to return to Singapore. In May, he repeated the request and was again rejected.

Four years later, in 2013, two months after he graduated from university, he returned to Singapore.

In January last year, he pleaded guilty to remaining outside Singapore without a valid exit permit for six years and 27 days. He claimed not to have received the second rejection e-mail - an argument Justice Chan described as "spurious".

Second Solicitor-General Kwek Mean Luck argued that a fine was inadequate for defaulters who return only after completing their personal goals and there was a need for a deterrent sentence.

Chow, now training to be a commercial pilot, asked to defer his jail term, but the request was rejected and he started serving the sentence immediately. His father, who declined to be named, said he was "very disappointed" with the decision.

He left Singapore at the age of 14 to study in Australia and evaded enlistment for more than six years. Brian Joseph Chow, 25, received a prison term instead of a fine yesterday after the prosecution's appeal.
Posted by The Straits Times on Thursday, February 11, 2016

MORE THAN A TECHNICAL ADVANTAGE

It might, on the one hand, seem as if an offender has secured only a technical advantage by being overseas without a valid exit permit, as he would eventually have to serve national service (NS) after having pursued his individual goals. While such a technical advantage is in itself objectionable... I must also point out that the advantage gained here is far more than a technical advantage... An individual may be less suited for a combat role as his age increases (as a result of him postponing his NS obligations); and the later commencement of NS reduces the time available (or may even make it impossible) for the individual to fully complete his post-operationally ready date (post-ORD) reservist obligations.- JUSTICE CHAN SENG ONNSUBSTANTIAL CONNECTION TO SINGAPOREI hold as a starting point that the custodial threshold will generally be crossed when an overseas defaulter who has a substantial connection to Singapore remains overseas without a VEP (valid exit permit) for more than two years. I must once again caution that the custodial threshold... and the sentencing benchmark that is set out in this judgment relate only to offenders who have a substantial connection to Singapore... The respondent left Singapore after having completed his primary and some part of his secondary education here and retains a substantial connection to Singapore: His family resides here and the respondent intends to reside in Singapore. He therefore has (reaped) and will reap the benefits of Singapore citizenship...- JUSTICE CHAN

Contrasting reactions to jailing of NS defaulterDebate on whether sentence is harsh or light, but all agree it brings clarity on punishment regime
By Calvin Yang and Dominic Teo, The Sunday Times, 14 Feb 2016

The decision to sentence 25-year-old Brian Joseph Chow to 11/2 months of jail for evading national service (NS) enlistment for more than six years has drawn a host of contrasting reactions.Some believe the punishment was too harsh, others say it was too light. Questions were also raised on why he was given a "discount" on his sentence for doing well in NS, which he served after surrendering in May 2013. IT manager Joshua Tan, 35, said: "NS is, after all, a national duty. Shouldn't everyone serving this obligation be expected to do their best?"But those interviewed, including parents, MPs, lawyers and defence analysts, all agreed on one thing - last Thursday's decision by Justice Chan Seng Onn has brought much needed clarity on the punishment regime for Singaporean NS defaulters.THE JUDGMENTIn sentencing Chow, the judge laid down detailed sentencing guidelines for future cases, ruling that prison is warranted for individuals who have a "substantial connection" to this country but evaded NS by remaining overseas without permission for two years or more.A person who has a substantial connection has enjoyed the benefits of citizenship, such as receiving an education here from young, or retains links to the country, such as one's family residing here.Justice Chan declined to give benchmarks for Singaporeans who left the country at a young age and had little connection to the country.

According to the Enlistment Act, anyone who fails to fulfil his NS obligation could face up to three years in prison or a fine of up to $10,000, or both. But Justice Chan, in his judgment, produced a graph charting benchmark prison terms against the number of years a defaulter has stayed away without a valid exit permit. Key factors to take into account are if the offender voluntarily surrendered or was arrested, and if he pleaded guilty or claimed trial.The age of the offender should also be taken into account. The older he is, the higher the baseline sentence should be, since he would likely have lower fitness over the course of his NS, including reservist.

The judge also highlighted a "discount" range for offenders who produced an "exceptional" performance in NS. Depending on the age of the defaulter, these discounts range from two months for those below 20, to half a month for offenders between 35 and 40 years of age.

So, someone prosecuted after the age of 38, for instance, after he was arrested and claimed trial, could face a jail term closer to the maximum three years.

In Chow's case, Justice Chan said that he would have been jailed for three months, if not for his exceptional performance during his NS.EQUITY AND UNIVERSALITYDescribing NS as the cornerstone of Singapore's defence and security, Justice Chan highlighted the three principles underpinning NS - national security, equity and universality.

He explained that NS has to be served in accordance with the prevailing defence policy, which is set by the Defence Ministry (Mindef), and it was not open to an individual to choose unilaterally when he would discharge his obligations.

Universality boils down to the idea that all who are fit to serve NS must serve. Otherwise, it could lead to feelings of unfairness and undermine morale and commitment among those who have to serve NS.

Equity requires that everyone be treated in the same way under the NS regime.

"NS is about each Singaporean male citizen performing his fair share towards Singapore's national defence, regardless of his background or circumstances," said Justice Chan, adding that this also involves sacrifice on the part of enlistees to postpone their personal goals, including continuing their education, to fulfil their duties.

As for ruling that prison is warranted for those who defaulted on NS for more than two years, the judge pointed to Mindef's statement delivered by then Defence Minister Teo Chee Hean in Parliament in 2006, to address the public outcry over pianist Melvyn Tan receiving just a $3,000 fine for evading NS.

Having gone to England in 1969 at the age of 12 to study music, Mr Tan did not return for 28 years. He was arrested after returning here in 2005 at the age of 49, as a British citizen, to visit his ageing parents.SPLIT VIEWSParents with children studying overseas saw the jail term for Chow as harsh, but those whose children are being educated locally called it lenient. Ms Geraldine Shum, 50, who has a 19-year-old in NS, believes the jail term should have been longer. "It was unfair for him to complete his university studies first, when his peers have to serve."

But engineer Chua Kim Loong, who lives with his family in Australia and has two teenage sons, believes jail for Chow was too strict.

"It is ridiculous that someone who came back to serve, and with distinction, can still be jailed. He may lose his sense of belonging to this place after being in prison," said the 45-year-old.

Housewife Julie Koh, 52, who has a 13-year-old son who intends to return from the United States to serve his NS, added that she knew of young Singaporean men who defaulted and have no intention of coming back. "They basically get away scot-free. But the boy in this case came back."DETERRENCESome NSmen also agreed that jail was not appropriate, since the black mark would remain with the 25-year-old after serving his time.

Said 26-year-old student Daryl Zeng, who returned to Singapore in 2008 to serve his NS after seven years in Australia: "A jail term could ruin one's future prospects."

But 21-year-old student Mark Ng, who returned for NS in 2010 after living abroad for over five years, said a fine was not enough of a deterrent, "especially considering that those who can afford to study overseas usually come from affluent families".

Many other NSmen whom The Sunday Times spoke to saw the punishment as either fair or lenient.

Student Lester Foo, 20, was perturbed that Chow's "exceptional performance" could earn him a "discount". "It seems to be sending the message that it is okay to evade NS then come back to serve, and as long as you do well, your sentence won't be as heavy," he said.

Many NSmen also agreed that NS should entail sacrifice - whether it be putting studies on hold, or having to cope with an unfamiliar environment after many years abroad.

Mr Clement Chum, 21, who moved to China at the age of three, returned for NS in 2013. He urged the Government to do more to help overseas Singaporeans keep a strong sense of national identity.TIMELY REMINDERMPs, lawyers and experts The Sunday Times spoke to all agreed that the sentencing guideline made the issue clearer and was timely, especially with more parents now being able to afford an overseas education for their children. Said lawyer Gloria James: "There may be an increase in the number of such cases."

Added veteran lawyer Amolat Singh: "It is a useful guide. It helps us advise clients on the possible sentences they could face."

Some highlighted that defaulters who have stayed away for more than two years will now be even more reluctant to return, while those who have not reached the two-year mark could be swayed to return as soon as possible.

The judgment has also made clear that dodging NS is a very serious issue. Defence analyst Ho Shu Huang, an associate research fellow at the S. Rajaratnam School of International Studies, said people will think twice before assuming they can stay away illegally, then hope for a fine by bringing up a host of mitigating factors.

Mr Vikram Nair, chairman of the Government Parliamentary Committee (GPC) for Defence and Foreign Affairs, described the ruling as sending a "strong message". "I have some sympathy for (Chow), because he came back and had a good service record. But I think the important message... is that one should not take NS call-ups lightly."

Mr Amrin Amin, Parliamentary Secretary for Home Affairs and deputy chairman of the Defence and Foreign Affairs GPC, reiterated that NS is critical for a small country like Singapore, and "there are serious consequences to be faced for people who shirk their responsibilities".

NS REQUIREMENTS
The Sunday Times, 14 Feb 2016Every Singaporean male must do national service.Between 13 and 161/2 years old• An exit permit is needed for overseas travel of three months or longer• A bond of $75,000 or half of the parents' combined annual gross income for the preceding year, whichever is higher, is required if the child is out of the country for two years or longer.Older than 161/2 but yet to enlist• Exit permit and bond are required for overseas travel of three months or longer.At 16 1/2 years old• A letter will be sent to inform individual about registering via the NS portal. Registration is scheduled by birth date.• Complete pre-enlistment documentation and book a date for medical screening. • Prepare and take physical proficiency test before enlistment.• Apply for deferment if taking the GCE A levels, full-time diploma or equivalent.Two months before enlistment• Enlistment notice, with details like reporting time and venue, is sent two months before scheduled enlistment date. Individuals must report to camp on the date of enlistment.

He served well, says Chow's father
By Calvin Yang, The Sunday Times, 14 Feb 2016The father of Brian Joseph Chow says he is "very disappointed" by the High Court's decision on Thursday to send his son to jail for 1½ months for evading national service (NS) for six years.He told The Sunday Times yesterday that any parent in his shoes would be."I don't understand (the decision), because my son has served, and he has served well," added Chow's father, who declined to be named.His son, now 25, first left to study in Australia in 2005 after completing part of his secondary school education in Singapore. His parents had felt that the education system here was not equipped to deal with his attention deficit disorder.Chow needed to apply for a valid exit permit to remain outside Singapore when he turned 16½ in 2007, but did not do so.

In January 2008, he was notified to register for NS.

After providing a letter from his school in Australia, the Ministry of Defence (Mindef) allowed a deferment for his foundation course, but not for his university studies. It issued follow-up reporting orders.

In March 2009, Chow e-mailed Mindef, asking for a deferment for his university studies. He was told that he had committed an offence and was advised to return. In May, he repeated the request and was rejected. In 2013, he returned to Singapore, two months after graduating from university.

Justice Chan Seng Onn told Chow he would have been jailed for three months if not for his exceptional performance during NS. Chow went to the Specialist Cadet School after Basic Military Training, and later became a reconnaissance instructor with the Combat Intelligence School.

Justice Chan said testimonials from Chow's commanders during his NS described his performance as exceptional.

Some parents seek more flexibility on NS deferment
By Dominic Teo and Calvin Yang, The Sunday Times, 14 Feb 2016More flexibility - that is what some parents, especially those with children studying overseas, are looking for when it comes to national service (NS).Pastor Richard Tan, who has been living in New Zealand and Australia for about 14 years, is one such parent.His son Nathaniel, who is turning 14 and studying in a high school in Perth, left Singapore when he was nine months old.While making it clear that his son wants to serve NS, and will adhere to any call-up, Mr Tan, 50, prefers that the teenager be allowed to finish his university studies first, so as "not to lose momentum".He said: "Instead of being disruptive, why can't we extend deferment?"Under current rules, the Defence Ministry allows servicemen who have gained admission to study medicine at a local university and those awarded the Public Service Commission (PSC) Overseas Merit Scholarship (OMS) to be granted deferment from their NS to pursue their university studies first.

Deferments are also considered for those with "exceptional talent", Defence Minister Ng Eng Hen said in a media interview last year.

This includes the likes of national swimmers Joseph Schooling and Quah Zheng Wen, who are seen as potential Olympic medallists.

Full-time national serviceman Samuel Lim, a 25-year-old PSC OMS scholar, disrupted his NS in 2010 to study public policy at The Fels Institute at the University of Pennsylvania before returning two years ago.

He said that his university experience gave him perspectives which made his NS experience more meaningful. He also pointed out that despite his age, he did not face any problems interacting with younger servicemen.

There were suggestions to give all Singaporeans the choice of attending university, whether overseas or locally, before serving NS.

Either way, they will enter the job market at the same time.

But defence analyst Ho Shu Huang said this could give rise to "knock-on effects" - from unpredictable NS intake sizes to insufficient university places because of a sudden surge in demand.And this may not be fair to everyone.

"Not all qualify for university. Allowing this group to defer would come across as being unfair," he said.

Some parents are also convinced of the benefits of serving NS first.

A 49-year-old mother, who wanted to be known only as Mrs Chia, said NS was good for her 19-year-old son.

She said that the stint allowed him to mature and gave him time to think about what he wanted to pursue in life.

In 2006, I was in Parliament listening to then-defence minister Teo Chee Hean painstakingly explain the nation's uncompromising stance against National Service (NS) evaders.His speech had come in the wake of a public furore over a $3,000 fine handed to celebrity pianist Melvyn Tan for defaulting on his NS for more than three decades. Mr Teo pushed for stiffer fines and jail sentences for those who skip NS.Since then, this no-nonsense stance has not wavered.In 2012, Mr Teo's successor Ng Eng Hen, also in Parliament, tackled questions on draft dodgers, specifically second-generation permanent residents who renounce their PR status to avoid serving (first-generation PRs are exempted from NS). He warned then of "adverse consequences" when these people go on to apply to study or work in Singapore.The issue of NS dodging cropped up again last month, when High Court Judge Chan Seng Onn jailed 25-year-old Brian Joseph Chow for 1½ months after he failed to enlist for more than six years. Chow, a born-and-bred Singaporean, left the country at 15 to study in Australia. He returned to serve NS after surrendering in May 2013.Justice Chan's sentencing, which built on an earlier ruling that those who default on NS for more than two years should be jailed, was hailed for providing clarity on the penalties. It also sparked a range of reactions, albeit far less vitriolic than 10 years ago.

There are those, especially among the nearly 1 million men who have gone through NS since conscription started in 1967, who feel that the sentence was too light. Some also questioned the decision to give Chow a "discount" for doing well in NS. He was initially given three months, but 11/2 months was shaved because he did "exceptionally well" in the army.

The sentiments show that most still see NS as the linchpin of the nation's identity and survival.

They understand that anyone who undermines this institution by failing to report for duty would, and rightfully should, be punished.

So it is important to let those who want to avoid NS - Singaporean- born and PRs - know the exact price they have to pay.CRIME AND PUNISHMENTUnder the Enlistment Act, anyone who fails to fulfil his NS obligation can face a fine of up to $10,000 - double the previous maximum - or up to three years in prison, or both.

But even with a more punitive regime in place, people still grumble. Take the uproar that followed reports that a 19-year-old Singapore-born New Zealander has so far refused to return to serve NS. Brandon Smith, who holds dual citizenship, was quoted as saying his NS stint would be a waste of time because he spent most of his time in New Zealand.

The indignation that the majority feel is understandable. Every year, some 20,000 young men are drafted, after which they are called up to fulfil their reservist obligations every year. Allowing people to wiggle their way out of NS undermines the three principles underpinning this rite of passage: national security, equity and universality.

As DPM Teo put it in his 2006 ministerial statement: "Singaporeans serve willingly, out of a sense of duty, and also a sense that the system is fair... nobody can dodge his responsibility to serve without severe legal and social sanctions."

Still, most convicted NS defaulters that were reported in the media in the last few years have got away with fines. These included the November 2014 case of 20-year-old Mohammed Ibrahim Hamzah, who had his two-month jail term reduced to a $3,000 fine for dodging NS for just over a year and three months.A MUCH-NEEDED BENCHMARKWhat is noteworthy in Justice Chan's landmark ruling is an accompanying graph that charted benchmark prison terms against the number of years a defaulter stayed away without a valid exit permit, illustrating the different degrees of severity.

Understandably, there are those who wring their hands over how cut-and-dried the guidelines are in meting out punishment. But judges in future NS defaulter cases will have to take into account factors such as whether the defaulter voluntarily surrendered or was arrested, and if he pleaded guilty or claimed trial. The age of the offender and his performance during NS are also mitigating factors. All things considered, the sentencing serves as a clear reminder that NS is serious business.

Lawyer Laurence Goh Eng Yau, who has frequently defended SAF soldiers, says: "For once, there is clarity. Potential defaulters have been forewarned... so they can't choose to default and think they can get away with a fine."

Singapore Management University law don Eugene Tan says it is timely for clearer and transparent sentencing guidelines to be put out. "It is an attempt to rationalise the sentencing principles and benchmarks for NS defaulters, which is in accordance with the public interest to have NS defaulters punished," said Associate Professor Tan, a former Nominated MP.ROOM FOR FLEXIBILITY?To be sure, the situation is not dire.

Most recent figures revealed by Defence Minister Ng in Parliament in 2012 showed that in 2011, 259 NS-liable men either failed to register or enlist, or did not come back to Singapore after their exit permits expired. Seven in 10 of them were Singaporeans who mostly live overseas.

In comparison, about 26,000 were drafted that year.

Pointing to the small numbers, those in the camp that adopts a softer stance argue that Singapore can be more forgiving towards those who erred and be more flexible in granting longer deferments so that they can pursue their dreams and ambitions first.

But in Justice Chan's own words, the concept of NS "involves sacrifice on the part of enlistees to postpone their personal goals, including continuing their education, to fulfil their duties".

Following a high-level panel's year-long review of NS which ended in 2014, Mindef and other uniformed services have already made NS less of a chore. Their efforts include making it easier for national servicemen to train and do well in the physical fitness tests and shortening the interval between when a student finishes his studies and starts NS.

The quitters may be in the minority and do not put a dent on national defence, but defence observer David Boey argues that SAF's defence capability will be affected in the long run when planners cannot forecast how many soldiers are due to be enlisted in any given year.

Mr Boey, the former defence correspondent for this paper who now sits on the Advisory Council on Community Relations in Defence, cautions against being swayed by calls to be more flexible, or worse still, lenient, to NS defaulters or requests for deferments. "Every seven NS evaders robs the Singapore Army of one section of soldiers - which is the smallest organised fighting unit in an army battalion. So every soldier counts," he says.MORE CLARITY STILL NEEDEDIt is not just finding the strength in numbers but also keeping the high level of commitment in every soldier that is important.

This is even more crucial when victory in today's battlefield hinges on the battle of wills and wits.

I have said in the past that the sweat and tears shed to build the SAF cannot be reduced to a dollar value. What is defining is priceless intangibles such as duty, honour, loyalty and national pride.

In the same vein, foisting NS on a reluctant soldier will not guarantee a loyal and fully committed soldier.

For instance, someone who left the country at a young age will conceivably be less likely to heed the call to bear arms for a country that he has little connection to.

A case in point is Seow Wei Sin, who stayed away for 23 years - one of the longest default periods. Born in Singapore, Seow left for Malaysia with his parents when he was just a year old. He was convicted in 2010 after he came back to the Republic a year earlier.

He was initially sentenced by the district judge to 18 months' jail. Appeal judge Chao Hick Tin reversed the decision and Seow was eventually fined $5,000.

This year, in his sentencing of Chow, Justice Chan focused his benchmarks on those who had a "substantial connection" to Singapore. Chow left after finishing his primary and some of his secondary school education here.

But the judge did not extrapolate his judgment to those with little connection to Singapore, for instance someone like Seow who left when he was still a baby.

How should a graph involving this group of people look? Should jail time be even involved? Does NS liability increase the more one benefits from the Singapore system, or is there intrinsic value to being a son of this country, regardless of when a person is uprooted?

Issues involving second- generation PRs are also not entirely clear. When Mr Ng referred to "adverse consequences", he hinted that it might mean a defaulter will not be offered a pass to work or study here. But these were never made explicit. And should punishments just end there?

Trawl through local blogs and online forums and there are plenty of stories on people who find out the cost of NS defaulting too late - for instance, a second-generation PR who skipped NS, graduated in law in Britain, but found he could not get a student pass when he wanted to do a conversion course.

Such stories abound, along with questions if there are blacklists and on the consequences of giving up one's PR to evade NS. There are also anecdotes of people bragging about how they gamed the system, some even providing "how-to guides".

NS, everyone agrees, is a serious issue, a key pillar of Singapore's security. There should be no grey area when it comes to defaulting. Justice Chan has provided much-needed clarity when it comes to one group of defaulters. Hopefully, any doubts for other groups will also be removed soon.